Opinion
No. 05-11-00989-CR
01-31-2012
ATHA LEE DUNCAN, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed January 31, 2012
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F11-55764-T
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice O'Neill
Atha Lee Duncan waived a jury and pleaded guilty to theft of property valued less than $1,500, having two prior theft convictions. See Tex. Penal Code Ann. § 31.03(a) (West 2011). The trial court assessed punishment at seven months' confinement in a state jail. In a single issue, appellant contends the trial court violated her due process rights when it refused to consider all of the evidence in assessing punishment. We affirm the trial court's judgment. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
Appellant contends the trial court's remarks reflect a clear bias against continuing her on probation and, thus, the trial court violated her due process rights. Appellant points to the trial judge's remarks made after appellant testified she grabbed a two-year-old child so a loss prevention officer would not be able to apprehend her. Specifically, appellant complains about the following statements made by the trial judge: "On the new case, though, it's not just between you and me. You brought a kid into that one. I won't abide by that. I won't stand for that. Don't say anything." Appellant asserts the trial judge's remarks show he ignored appellant's drug addiction issues and the recommendation of the probation officer that appellant should received probation and treatment. The State responds that appellant has not preserved this issue for appellate review and, alternatively, the record does not show the trial court failed to consider all the evidence or violated appellant's due process rights.
After sentencing, appellant did not object to the sentence. Although appellant filed a motion for new trial, she did not object to the imposition of the seven-month sentence in the trial court nor did she contend the trial judge did not consider all of the evidence before imposing sentence. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.) (for error to be preserved for appeal, record must show appellant made a timely request, objection, or motion). Thus, appellant has not preserved this issue for our review.
Moreover, we conclude the complaint is without support in the record. Due process requires a neutral and detached hearing body or officer. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). Absent a clear showing of bias, the trial court's actions will be presumed to have been correct. Brumit v. State, 206 S.W.3d 639, 644 (Tex. Crim. App. 2006).
The trial court imposed punishment within the statutory range for the offense enhanced by two prior theft convictions. See Tex. Penal Code Ann. §§ 12.35(a), 31.03(e)(4)(D). As a general rule, punishment that is assessed within the statutory range for an offense is neither excessive nor unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). Nothing in the record shows the trial court failed to consider all of the evidence, the full range of punishment, or did not act impartially. See Brumit, 206 S.W.3d at 645. We resolve appellant's sole issue against her.
We affirm the trial court's judgment.
MICHAEL J. O'NEILL
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110989F.U05